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Perez v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

July 9, 2019

KYREE L. PEREZ, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondents.

          ORDER

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner Kyree L. Perez, an inmate of the Florida penal system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner is proceeding on an Amended Petition. Doc. 11. He challenges a state court (Duval County, Florida) judgment of conviction for attempted second degree murder and possession of a firearm by a juvenile delinquent found to have committed a felony act. He is currently serving an aggregate fifty-five-year term of incarceration. Doc. 11 at 1. Respondents filed an Amended Response. See Doc. 24 (Resp.).[1] Petitioner declined to file a reply. See Doc. 26. This case is ripe for review.

         II. Analysis

         Petitioner raises one claim for relief. See Doc. 11 at 6. He claims that the state failed to file formal charges within thirty days of his arrest in violation of Florida Rule of Criminal Procedure 3.134. According to Petitioner, he was arrested on June 6, 2014, in Philadelphia, Pennsylvania, and extradited to Jacksonville, Florida, and booked into the pre-trial detention facility on July 4, 2014. He claims that the state did not file formal charges until August 1, 2014, fifty-six days after his arrest. He argues that pursuant to Rule 3.134, he should have been released on his own recognizance forty days after his arrest.

         Petitioner raised this claim in a “Petition for Writ of Habeas Corpus” filed with the First District Court of Appeal. Resp. Ex. F. The First DCA construed the petition as a motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 and transferred the motion to the trial court for consideration. Resp. Ex. G. The trial court denied the claim, finding as follows:

A. The Defendant was arrested on June 6, 2014 in Philadelphia, PA and extradited to Jacksonville, FL on July 4, 2014.
B. The Defendant was charged by information on August 1, 2014 with Attempted Murder-Second Degree and Possession of a Weapon or Ammunition by a Florida Delinquent Adult Felon.
C. The Defendant is claiming that the Information was filed 56 days after his arrest and that therefore he should be released from custody.
D. The Defendant cites Rule 3.134 Fla. R. Crim. P.; however, his interpretation of said Rule is misplaced.
E. The Defendant's remedy would have been to be released from custody during the pendency of the case, not to be relieved from serving his sentence.
F. The time to raise that issue has long since passed. The Defendant was found guilty by a jury of his peers and sentenced to 40 years Florida State Prison with 201 days credit as to Count I and 15 years Florida State Prison (Consecutive) as to Count II.
G. The Defendant appealed his case to the First District Court Appeal where he had the opportunity to raise the aforementioned issue, but apparently neglected to do so. The District Court affirmed his conviction and a Mandate was issued regarding same on April 28, 2016 . . . .

Resp. Ex. H. Petitioner attempted to seek an appeal of the trial court's denial; however, when Petitioner failed to comply with the First DCA's order directing him to file an amended notice of appeal[2] (Resp. Ex. I), the First DCA dismissed the appeal (Resp. Ex. J). Respondents argue that this claim is unexhausted and procedurally defaulted because ...


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